The Court of Appeals for the 10th Circuit found that there does not have to be a showing of bad faith in destroying evidence for a party to prevail on its request for spoliation sanctions. In 103 Investors, L.P. v. Square D Co., 470 F.3rd 985 (10th Cir. 2006) Plaintiff claimed that defendant had failed to label the busway system to warn owners to keep the high-voltage busway free of water and other contaminants. A “busway” is a system of four insulated aluminum bars in an aluminum casing and it ran from the basement to the top floor and fed electricity to each floor. At the trial plaintiff’s building maintenance supervisor testified he had not seen a warning on the busway. A representative of defendant testified that there was a warning label placed on specific components of the busway assembly and in the installation instructions. After a fire damaged the building the plaintiff, without notice to the defendant, threw away 50 to 60 feet of the busway and saved only 4 feet. The saved portion was not a piece that would have contained a warning.
At the close of the evidence the Court granted defendant’s motion for sanctions for spoliating evidence and ordered the testimony of plaintiff’s maintenance supervisor stricken. The Court then granted defendant’s motion for judgment. Defendant appealed asserting that the district court should not have granted the spoliation motion without a showing that the plaintiff acted in bad faith. The Court said:
“Defendant was not required to show that Plaintiff acted in bad faith in destroying the evidence in order to prevail on its request for spoliation sanctions. The district court found that Plaintiff had a duty to preserve the evidence because it knew, or should have known, that litigation was imminent, and Defendant was prejudiced by the destruction of the evidence because there was no substitute for a direct visual examination of the busway.” (P.989)